University of British Columbia v. Kelly et al.

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Donald, Frankel and Fenlon, JJ.A.
• Citation: 2016 BCCA 271,(2016), 390 B.C.A.C. 125 (CA)
• Date: 19 May 2016

B.C. Univ. v. Kelly (2016), 390 B.C.A.C. 125 (CA);

    673 W.A.C. 125

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. JN.051

The University of British Columbia (appellant/respondent on cross-appeal/petitioner) v. Dr. Carl Kelly (respondent/appellant on cross-appeal/respondent) and British Columbia Human Rights Tribunal (respondent/respondent)

(CA43198; 2016 BCCA 271)

Indexed As: University of British Columbia v. Kelly et al.

British Columbia Court of Appeal

Donald, Frankel and Fenlon, JJ.A.

June 24, 2016.

Summary:

The University of British Columbia (UBC) dismissed Dr. Kelly as a resident in its post-graduate training program in family medicine in 2007 and reinstated him almost six years later. Dr. Kelly filed a complaint under the Human Rights Code, alleging discrimination on the ground of mental disability (attention deficit hyperactivity disorder and a non-verbal learning disorder). The Human Rights Tribunal found that Dr. Kelly's disabilities were a factor in his adverse treatment and that he had established prima facie discrimination under s. 8 (a service) and s. 13 (employment). UBC had not provided reasonable accommodation to the point of undue hardship. The Tribunal awarded Dr. Kelly $385,194.70 as compensation for lost wages (six years' delayed entry into the profession) and $75,000 for injury to dignity, feelings and self-respect. UBC applied for judicial review of the merits and remedy decisions.

The British Columbia Supreme Court, in a decision reported at [2015] B.C.T.C. Uned. 1731, dismissed the application with respect to the merits decision. The Court set aside the dignity award on the basis that it was arbitrary and therefore patently unreasonable, leaving it to the Tribunal to reconsider the decision. UBC appealed, alleging errors of fact and law with respect to both the prima facie case of discrimination and the duty to accommodate. With respect to the remedy decision, UBC appealed the award of damages for lost earnings. Dr. Kelly cross-appealed the interference in the dignity award.

The British Columbia Court of Appeal dismissed the appeal, allowed the cross-appeal, and restored the Tribunal's award for injury to dignity.

Civil Rights - Topic 903

Discrimination - General principles - Elements - See paragraphs 17 to 28.

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - See paragraphs 17 to 37.

Civil Rights - Topic 960.1

Discrimination - Mental or physical disability - General - See paragraphs 1 to 48.

Civil Rights - Topic 980.1

Discrimination - Duty to accommodate - General - See paragraphs 17 to 48.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - See paragraphs 49 to 64.

Civil Rights - Topic 1170

Discrimination - Remedies - Hurt feelings or mental anguish - Compensation - See paragraphs 59 to 64.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - See paragraphs 49 to 64.

Counsel:

D.J. Jordan, Q.C., for the appellant;

C.D. Bavis and A. Tremblay, for the respondent, Dr. Carl Kelly;

K.A. Hardie, for the respondent, British Columbia Human Rights Tribunal.

This appeal and cross-appeal were heard at Vancouver, British Columbia, on May 19, 2016, before Donald, Frankel and Fenlon, JJ.A., of the British Columbia Court of Appeal. In reasons written by Donald, J.A., the Court delivered the following judgment, dated June 24, 2016.